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A Gitmo bar turncoat?

The Obama Administration is turning heads with its choice of legal counsel for arguments Thursday before a federal appeals court considering whether some prisoners at the U.S.-run Bagram Air Base in Afghanistan should be able to challenge their detention in American courts.

According to a notice filed last week with the U.S. Court of Appeals for the D.C. Circuit, the government’s case for denying legal recourse to war-on-terror prisoners at Bagram will be argued by Principal Deputy Solicitor General Neal Katyal, 39.

It’s a curious position for Katyal since he became a star in the legal firmament by winning a major Supreme Court victory in 2006 on behalf of war-on-terror prisoners at Guantanamo. Katyal successfully argued Hamdan v. Rumsfeld, a case that prompted a 5 to 3 decision that the rules for the military commissions set up by the Bush Administration violated federal law and the Geneva Conventions.

Lawyers for Guantanamo detainees hailed Katyal, a Georgetown University law professor, as a hero after that decision, which is considered one of the key blows to the Bush Administration’s policies for detaining and trying terror suspects. Those attorneys are now less enamored of Katyal for his new role trying to strip away rights claimed by suspected Al Qaeda operatives held in Afghanistan.

Several lawyers for Guantanamo detainees declined to be quoted about their views on Katyal’s transition from advocate for war-on-terror prisoners to a government official trying to prevent such prisoners from getting a hearing in court.

However, even before the Justice Department tapped Katyal to argue against the Bagram prisoners, there were signs that his views were more moderate than those of the typical lawyer for detainees. Back in 2007, Katyal joined with former Bush administration lawyer Jack Goldsmith to co-author a New York Times op-ed urging the creation of National Security Courts where suspects "need not be given the full panoply of criminal protections."

In September, when Katyal’s name appeared on briefs detailing the government’s position in the Bagram cases, National Public Radio reported that some of Katyal’s former colleagues were baffled by his new role arguing against detainees’ rights. It was not clear at that time that Katyal would assume the lead role in formulating the government’s arguments. Of course, it's possible his history as a defender of terror suspect's rights could give some added credibility to his current arguments that extending those rights to Bagram prisoners would be unwise and could jeopardize U.S. military operations in Afghanistan.

Legal observers also noted that, regardless of Katyal’s history, the selection of the No. 2 attorney in the Solicitor General’s office or, for that matter, anyone from that office, to present argument to a three-judge appeals court panel was unusual and a sign of the importance of the case to the Obama Administration. While Obama complained as a senator about President Bush’s creation of a “legal black hole” at Guantanamo, the Obama Administration has fought aggressively to keep prisoners at Bagram from challenging their detention in U.S. courts. In April, Judge John Bates, a Bush appointee, ruled that three non-Afghan prisoners who claim they were captured outside Afghanistan could pursue so-called habeas corpus cases claiming they are wrongfully detained at Bagram. The Obama Administration quickly appealed, winning a stay of the order and setting up the arguments to be presented Thursday.

Some commentators have suggested that the Obama Administration might try to move prisoners to Bagram if the Guantanamo facility is closed in accordance with Obama’s stated goal. However, senior administration officials have indicated they have no plans for a Guantanamo-to-Bagram move. In addition, it is not clear whether federal judges, who now have jurisdiction over Guantanamo, would allow prisoners to be moved out of that jurisdiction. But keeping Bagram outside the reach of U.S. courts would preserve the Obama Administration’s ability to send new war-on-terror prisoners captured anywhere in the world for open-ended detention without independent legal review.